A number of years ago, I was in the middle of trying a burglary second degree (PL Section 140.25, C violent felony) case, and I was faced with the task of needing to cross examine a blood expert who had tested some blood found at the scene. A comparison of the blood at the scene with blood taken from my client suggested that it was "a match". It was a "match" by blood type only and this was before DNA was widely available as a forensic tool.

Now I had done a considerable amount of preparation for this cross examination and I had learned quite a bit about blood typing. I had several volumes of books devoted to the subject available to me and several defense resources available with all kinds of information. Although I have long since forgotten, I recall being sufficiently informed that I could have bored nearly anyone to tears with the details of blood typing. I was ready to take on the big bad expert.

But in the middle of trial, just when it was time for me to get up and begin a long and tedious attempt to take down an expert with more degrees than I had who likely had an answer for everything, I completely changed my approach to this expert.

Now normally, when you have gone to the trouble to carefully prepare a cross examination and thought about it as much as I had prior to trial, changing your approach on the spur of the moment can be a recipe for disaster. One of the defining characteristics of a person who is an effective advocate at trial, is not over reacting or panicking to the point that well thought out strategies give way to frenzied, last minute, ill formed ideas.

But in this case, when the thought occurred to me, it seemed just right, and it seemed to me that it was something that the jurors would appreciate far more than some sort of tedious struggle between me and an expert, that frankly the expert would likely have won. In the world of medicine and science, I am tangling in the expert's world. What I had conceived, in its simplicity and rhetorical flare, was a way to force the expert into MY world of argument. This was a place where the expert was not as likely to contend well with me.

And so, after just a couple basic, ground ball, easy to grasp questions about the percentage of all the population with a particular blood type, I just had one more question. I left the entire notebook full of questions behind me and asked the expert point blank the exact question I knew every juror wanted answered - but that I also knew that the scientist on the witness stand could not.

"Was the blood recovered from the window my client's blood?"

Now normally, cross examination calls for controlling the witness with very specific, tightly drawn "leading questions" (questions that suggest the answer - like "Didn't you visit John Smith's house on January 1?").

The reason you generally want to ask very tight questions on cross examination is that witnesses on cross examination are by definition unfavorable witnesses who are not going to be helping you and who will quibble with you over everything. Give them a chance, and they will drone on and on with long winded answers that do everything but answer your question.

Therefore, good cross examination is usually a series of tight questions to which the witness is forced to answer either yes or no. By the way, you don't see much good cross examination in the world. On television and in movies, cross examination is ridiculous and questions begin with "you expect the jury to believe..." Bad. Gets you nowhere. Good cross examination is a thing of beauty to behold and is as rare as things of real beauty.

But here, in this case, I deviated from this rule, and I point blank asked a question that called for no particular answer. On top of that, I was asking the question that essentially defined the case. I was asking a question that in the minds of the jurors was going to be the verdict in the case.

And if the witness were not a scientist, and an expert, who needed to tell herself that she operated by the laws of nature and not by her whims, and more important, that she would be available to testify as a credible scientist in the future, I probably never would have given the witness such a question to answer in that way.

I knew that scientifically, the expert could not have answered that question "Yes" without exposing herself to immediate, crushing cross examination about the statistics of it and that given the simplicity of the single test performed there was no way she could have retreated into some sort of "reasonable degree of scientific certainty" position. I knew that scientifically, she could not say YES to that question, not even close.

And it was not a question that she expected in such a blunt way. She hesitated. The jurors never expected such a blunt question that basically asked for a verdict on the case either. The tension built by the expert's hesitation was absolutely delicious. I can still taste it, because I knew that the scientist on the witness stand couldn't say YES. I could feel her recoiling at the unfairness of the question. And before she could start in on some poisonous nonsense, I added, "Yes, No, or I don't know."

The prosecutor objected to this addition, but the Judge, who was known for being a bit of a tough customer and far from a pushover for defense lawyers, was clearly entertained by the corner from which the expert was trying to escape. And if any rule of cross examination is absolute, it is that hardly any rules matter if you are entertaining the judge.

The judge, therefore, over ruled the objection with a smile on his face and seemed to me even to take pleasure in repeating to the witness, "Yes, No, or I don't know."

Again the witness hesitated, clearly looking for a way out. But to her credit, she gave the only answer that her scientific training could have given if required to choose among those three alternatives. Given the choice of those three answers, her only defensible refuge was "I don't know."

And ultimately, that is exactly what she said. The Government's big fancy expert, there to bury my client under a cloud of suspicion, answered "I don't know." to the question of whether or not the blood in question was my client's blood.

My response? "No further questions." And I sat down. Knowing when to sit down in a cross examination is often harder than you know. In this case, when the Government's scientific expert says that she doesn't know if the blood she tested is your client's blood, it is time to sit down.

The closing argument writes itself. If the Government's own fancy scientist doesn't know whether my client did it, then how the heck are you supposed to especially to a burden of beyond a reasonable doubt? Of course that is a little bit of rhetorical license with the actual testimony, but rhetorical license is what closing arguments are all about.

The simplicity of it and the way it distilled the vagueness of the Government's case against my client into a single ultimate question and answer was just a thing of absolute beauty. To the extent that the verdict measures the level of the jury's agreement, they did acquit my client of all charges, including the burglary in the second degree, and he was released from custody.

By Don Murray, Esq.

Disclaimer: The above blog entry is what would be classified in the profession as a "war story" or self told tale of a lawyer's glorious exploits in court. For disclosure purposes, members of the general public should know that as a general rule, "war stories" from lawyers are less reliable than statements of the Devil himself. As lawyers, we know this, and yet we still even tell war stories to each other, because we so love to hear the sounds of our own voices. To listen to the war stories of lawyers, you would think that nobody ever loses a case, all witnesses collapse from exhaustion after being cross examined, and jurors swoon at the very sight all lawyers. So with this disclosure, you may now be wondering how much of what I said above was actually true. And the answer is that much more of the above story is true than is the case with most lawyer war stories.